JOHN DOE, et al., Plaintiffs, v. TWITTER, INC., Defendant.
Case No. 21-cv-00485-JCS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
August 19, 2021
I. INTRODUCTION
Plaintiffs John Doe #1 and John Doe #2 allege that when they were thirteen years
Plaintiffs assert state and federal claims against Twitter based on its alleged involvement in and/or enabling of sex trafficking and the distribution of the child pornography containing their images. Twitter, however, contends that even after Congress’s enactment of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act in 2018, the conduct alleged by Plaintiffs is shielded from liability under Section 230 of the Communications Decency Act (“CDA”). Thus, Twitter brings a Motion to Dismiss First Amended Complaint (“Motion”) seeking dismissal of all of Plaintiffs’ claims on the basis that it is immune from liability under the CDA. In the Motion, Twitter also contends Plaintiffs fail to state viable claims as to many of their claims. A hearing on the Motion was held on August 6, 2021. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.1
II. BACKGROUND
A. First Amended Complaint
Plaintiffs’ First Amended Complaint (“FAC”), which is the operative complaint, contains detailed allegations describing: 1) Twitter’s platform, business model and content moderation policies and practices (FAC ¶¶ 23-51); 2) the ways Twitter allegedly permits and even aids in the distribution of child pornography on its platform and profits from doing so (FAC ¶¶ 52-84); 3) how pornographic content featuring John Doe #1 and John Doe #2 was created and eventually ended up on Twitter’s platform (FAC ¶¶ 85-100); and 4) Twitter’s response to requests that the pornographic photos and videos containing Plaintiffs’ images be removed from Twitter (FAC ¶¶ 101-132).
Based on these allegations, Plaintiffs assert the following claims:
- violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”),
18 U.S.C. §§ 1591(a)(1) and1595(a) based on the allegation that “Twitter knew, or was in reckless disregard of the fact, that through monetization and providing, obtaining, and maintaining [child sexual abuse material (“CSAM”)] on its platform, Twitter and Twitter users received something of value for the video depicting sex acts of John Doe #1 and John Doe #2 as minors.” FAC ¶¶ 133-143 (Claim One); - violation of the TVPRA,
18 U.S.C. §§ 1591(a)(2) and1595(a) , based on the allegation that Twitter “knowingly benefited, or should have known that it was benefiting, from assisting, supporting, or facilitating a violation of 1591(a)(1).” FAC ¶¶ 144-155 (Claim Two); -
violation of the duty to report child sexual abuse material under 18 U.S.C. §§ 2258A and2258B . FAC ¶¶ 156-163 (Claim Three); - civil remedies for personal injuries related to sex trafficking and receipt and distribution of child pornography under
18 U.S.C. §§ 1591 ,2252A , and2255 , based on the allegations that Twitter was “notified of the CSAM material depicting John Doe #1 and John Doe #2 as minors on its platform and still knowingly received, maintained, and distributed this child pornography after such notice[,]” causing Plaintiffs to suffer “serious harm and personal injury, including, without limitation, physical, psychological, financial, and reputational harm.” FAC ¶¶ 164-176 (Claim Four); - California products liability based on the allegedly defective design of the Twitter platform, which is “designed so that search terms and hashtags utilized for trading CSAM return suggestions for other search terms and hashtags related to CSAM” and through use of “algorithm(s), API, and other proprietary technology” allows “child predators and sex traffickers to distribute CSAM on a massive scale” while also making it difficult for users to report CSAM and not allowing for immediate blocking of CSAM material once reported pending review. FAC ¶¶ 177-190 (Claim Five);
- negligence based on allegations that Twitter had a duty to protect Plaintiffs, had actual knowledge that CSAM containing their images was being disseminated on its platform and failed to promptly remove it once notified. FAC ¶¶ 191-197 (Claim Six);
- gross negligence based on the same theory as Plaintiffs’ negligence claim. FAC ¶¶ 198-203 (Claim Seven);
- negligence per se based on the allegation that Twitter’s conduct violated numerous laws, including
18 U.S.C. §§ 1591 and1595 (benefiting from a sex trafficking venture),18 U.S.C. § 2258A (failing to report known child sexual abuse material),18 U.S.C. § 2252A (knowingly distributing child pornography),Cal. Civ. Code § 1708.85 (intentionally distributing non-consensually shared pornography), andCal. Penal Code § 311.1 (possessing child pornography). FAC ¶¶ 204-26 (Claim Eight); - negligent infliction of emotional distress. FAC ¶¶ 207-212 (Claim Nine);
- distribution of private sexually explicit materials, in violation of
Cal. Civ. Code § 1708.85 , based on the allegation that “[b]y refusing to remove or block the photographic images and video depicting him after Plaintiff John Doe #1 notified Twitter that both he and John Doe #2 were minors, Twitter intentionally distributed on its online platform photographic images and video of the Plaintiffs.” FAC ¶¶ 213-218 (Claim Ten); - intrusion into private affairs, based on the allegation that “Twitter intentionally intruded into Plaintiffs’ reasonable expectation of privacy by continuing to distribute the photographic images and video depicting them after John Doe #1 notified Twitter that Plaintiffs were minors and the material had been posted on its platform without their consent.” FAC ¶¶ 219-223 (Claim Eleven);
- invasion of privacy under the
California Constitution, Article 1, Section 1 . FAC ¶¶ 224-228 (Claim Twelve); and - violation of
California Business and Professions Code § 17200 (“UCL”) based on allegations that “Twitter utilized and exploited Plaintiffs for its own benefit and profit” and “Plaintiffs, to their detriment, reasonably relied upon Twitter’s willful and deceitful conduct and assurances that it effectively moderates and otherwise controlsthird-party user content on its platforms.” FAC ¶¶ 229-234 (Claim Thirteen).
Plaintiffs seek compensatory and punitive damages, injunctive relief, restitution, disgorgement of profits and unjust enrichment and attorneys’ fees and costs.
B. Statutory Background
1. The CDA
The CDA was enacted as part of the Telecommunications Act of 1996. It contains a “Good Samaritan” provision that immunizes interactive computer service (“ICS”) providers from liability for restricting access to certain types of materials or giving users the technical means to restrict access to such materials, providing as follows:
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
“This grant of immunity dates back to the early days of the internet when concerns first arose about children being able to access online pornography.” Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1046 (9th Cir. 2019), cert. denied, 141 S. Ct. 13 (2020). At that time, “[p]arents could not program their computers to block online pornography, and this was at least partially due to a combination of trial court decisions in New York that had deterred the creation of online-filtration efforts.” Id. Under the New York cases, “if a provider remained passive and uninvolved in filtering third-party material from its network, the provider could not be held liable for any offensive content it carried from third parties.” Id. (citing Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139–43 (S.D.N.Y. 1991)). On the other hand, “once a service provider undertook to filter offensive content from its network, it assumed responsibility for any offensive content it failed to filter, even if it lacked knowledge of the content.” Id. (citing Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, *5 (N.Y. Sup. Ct. May 24, 1995)). “The Stratton Oakmont decision, along with the increasing public concern about pornography on the internet, served as catalysts” for the enactment of the CDA. Id.
The Ninth Circuit has interpreted CDA § 230 broadly: so long as an interactive computer service provider is not also an “information content provider,” that is, someone who is “responsible, in whole or in part, for the creation or development of” the offending content, it is immune from liability arising from content created by third parties. Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (citing
As expressly stated in Section 230, the policies underlying the enactment of that section are:
- to promote the continued development of the Internet and other interactive computer services and other interactive media;
- to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
- to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
- to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children‘s access to objectionable or inappropriate online material; and
- to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
Section 230 expressly states that it has “[n]o effect on criminal law[,]” providing that “[n]othing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.”
2. The TVPRA
In 2000, Congress enacted the TVPRA, which criminalized sex trafficking. When it enacted the TVPRA, “Congress declared that the purposes of the [TVPRA] are to ‘combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.’ ” Ditullio v. Boehm, 662 F.3d 1091, 1094 (9th Cir. 2011) (quoting
In its current form, the TVPRA makes it a crime to engage in direct sex trafficking or to benefit financially from sex trafficking, providing as follows:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to
cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
The civil liability provision in its current form provides that “[a]n individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.”
3. FOSTA
In 2018, the CDA was amended by the Allow States and Victims to Fight Online Sex Trafficking Act of 2017,
FOSTA’s amendment of the CDA consisted of adding Section 230(e)(5):
(5) No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
(A) any claim in a civil action brought under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of Title 18; or
(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of Title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant‘s promotion or facilitation of prostitution was targeted.
C. Contentions of the Parties
1. Motion
Twitter argues in the Motion that it is immune under CDA § 230 as to all of Plaintiffs’ claims. Motion at 2. According to Twitter, the amendment of Section 230 under FOSTA, permitting sex trafficking victims to pursue civil claims under
Twitter argues that here, Plaintiffs have failed to allege facts showing that the exception to immunity created under FOSTA applies because the FAC: 1) “lacks any facts showing that Twitter affirmatively participated in any kind of venture with the Perpetrators, let alone a sex trafficking venture”; 2) “does not allege, as required to establish a violation of Section 1591, any facts establishing that Twitter knew that Plaintiffs were victims of sex trafficking or that the Videos were evidence of this crime”; and 3) does not “allege any connection between the Perpetrators and Twitter or that Twitter received any benefits because of the Videos.” Id. Twitter further asserts that CDA § 230 protects it from liability because “Twitter did remove the Videos and suspend the
Twitter represents that it “vigorously combats [child sexual exploitation material (“CSE”)] through a combination of methods, including review of user reports and the use of proprietary technology to proactively identify and remove such material” but that “given the sheer volume of Tweets posted every day on Twitter’s platform (hundreds of millions of Tweets posted by over 190 million daily users), it is simply not possible for Twitter – or the individuals who enforce its Rules and policies – to find and remove all offending content immediately or accurately in all cases.” Id. at 1. Twitter points to its zero-tolerance policy for child sexual exploitation materials, which is set forth in its Rules – to which users must agree when they create a Twitter account. Id. at 6. According to Twitter, it also “utilizes multiple tools, including reports by the public . . . , moderators who review reports of abuse and CSE content, innovative technology and algorithms that proactively identify abusive content, and online education and information sharing to combat online abuse.” Id. (citing FAC ¶¶ 42-43, 55-57; Wong Decl., Exs. 1 (news article entitled “Twitter says it’s getting better at detecting abusive tweets without your help”), 2 (a blog post by Twitter entitled “A healthier Twitter: Progress and more to do”)). According to Twitter, in enacting FOSTA, Congress did not intend “for online platforms like Twitter that proactively act against such activity to be sued for their inadvertent failure to remove content.” Id. at 2.
The purpose of CDA § 230, according to Twitter, was “to ensure that interactive computer service (‘ICS’) providers would never have to choose ‘between taking responsibility for all messages and deleting no messages at all,’ which presents such providers a ‘grim’ and illusory choice.” Id. at 3 (quoting Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008)). To achieve that purpose, it asserts, “§ 230 creates broad immunity for claims against ICS providers based on content created by users: ‘No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ ” Id. (quoting
Twitter asserts that FOSTA created only a narrow exception to the immunity afforded under CDA § 230, permitting a victim of sex trafficking to bring a civil action under § 1595, but only “ ‘if the conduct underlying the claim constitutes a violation of [S]ection 1591,’ the criminal statute prohibiting sex trafficking.” Id. at 4 (citing
Here, Twitter asserts, it meets all the requirements for establishing immunity under CDA § 230, namely, that (1) it is an ICS provider; (2) Plaintiffs’ claims treat Twitter as the publisher or speaker of the content in question; and (3) someone other than Twitter provided or created the content at issue. Id. at 8-11. Twitter argues further that the FAC does not allege facts that would establish that any exemption to CDA § 230 applies, including the FOSTA exception that allows for the imposition of liability where the ICS itself violates Section 1591, either as a “primary violator” or a “secondary participant” that ‘knowingly . . . benefits, financially or by receiving anything of value, from participation in a venture’ with a primary violator.” Id. (quoting
With respect to Plaintiffs’ claim that Twitter was a primary participant in sex trafficking under Section 1591(a)(1), Twitter contends Plaintiffs’ allegations fall short because “[t]o plead a primary violation, a plaintiff must allege that the defendant ‘provide[d], obtain[ed], [and] maintain[ed] . . . a person” knowing that he or she “will be . . . cause[d]” to engage in a commercial sex act.” Id. at 12 (quoting
Twitter contends Plaintiffs also fail to allege that it was a secondary participant under Section 1591(a)(2). Id. at 12-19. According to Twitter, to establish that it is a secondary participant, Plaintiffs must “plead that Twitter ‘knowingly . . . benefit[ed] . . . from participation in a venture which has engaged in [sex trafficking] in violation of [Section 1591(a)(1)].’ ” Id. (quoting
“First, Plaintiffs do not allege the existence of any type of venture between Twitter and any party that has a common purpose, much less facts suggesting ‘that [Twitter] actually participated in a sex-trafficking venture’ that had the common purpose of trafficking Plaintiffs.” Id. at 12 (quoting United States v. Afyare, 632 F. App’x 272, 283-86 (6th Cir. 2016) (emphasis in original); and citing B.M. v. Wyndham Hotels & Resorts, Inc., 2020 WL 4368214, at *3 (N.D. Cal. July 30, 2020) (purportedly analyzing the elements of a Section 1591 violation and following Afyare)); see also id. at 13-15 (arguing that Plaintiffs have not alleged any “venture” or any “active participation” in a venture).
“Second, there are no facts indicating Twitter received a benefit ‘because of’ the alleged sex trafficking venture, let alone that Twitter knowingly received it.” Id. at 12 (citing Geiss v. Weinstein Co. Holdings LLC, 383 F. Supp. 3d 156, 169 (S.D.N.Y. 2019)); see also id. at 15-17 (arguing that Plaintiffs have not alleged “a causal relationship between affirmative conduct furthering the sex-trafficking venture and receipt of a benefit, with actual . . . knowledge of that causal relationship”) (citing Geiss, 383 F.Supp.3d at 169; Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc., 2013 WL 6816174, at *16 (W.D. Ark. Dec. 24, 2013)). In particular, Twitter asserts that the FAC contains no factual allegations that it monetized or benefited from the Videos, instead containing only conclusory allegations that it did so, which are insufficient. Id. at 16 (citing Jabagat v. Lombardi, 2015 WL 11004900, at *4 (S.D. Miss. Jan. 30, 2015)). Twitter further contends the FAC does not plausibly allege that it knowingly generated revenue “because of” its alleged failure to remove the Videos. Id. at 16 (citing Geiss, 383 F.Supp.3d at 169-170).
“Third, the FAC does not contain any allegation that Twitter had actual knowledge that Plaintiffs were victims of sex trafficking or that it knew the Videos contained evidence of this.” Id. at 12 (citing FAC ¶¶ 152-54; Noble v. Weinstein, 335 F.Supp.3d 504, 523-24 (S.D.N.Y. 2018)); see also id. at 17-19. According to Twitter, Plaintiffs “must show that Twitter knew specifically that Plaintiffs had been sex trafficked, and deliberately assisted the sex trafficking.” Id. at 17 (citing Kik, 482 F.Supp.3d at 1251). They do not satisfy this requirement, Twitter asserts, because “[t]he FAC . . . contains no facts plausibly alleging that Twitter had actual knowledge of Plaintiffs’ prior interactions with the Perpetrators” or that it knew the perpetrators were sex traffickers or that the videos related to commercial sex. Id. at 18-19 (citing Noble, 335 F.Supp.3d at 524; Lawson v. Rubin, 2018 WL 2012869, at *12-14 (E.D.N.Y. Apr. 29, 2018); A.B. v. Hilton Worldwide Holdings Inc., 484 F.Supp.3d 921, 940 (D. Or. Sept. 8, 2020); Woodhull Freedom Found. v. United States, 334 F.Supp.3d 185, 203 (D.D.C. 2018), rev’d on other grounds, 948 F.3d 363 (D.C. Cir. 2020)).
Twitter argues that even if it is not immune under CDA § 230, Plaintiffs fail to state a claim under Section 1595. Id. at 19-21. First, it argues that Plaintiffs fail to allege that Twitter is a perpetrator and therefore cannot establish liability on the basis of primary liability. Id. at 19. To the extent that Plaintiffs assert their claim under Section 1595 on a “beneficiary” theory the claim also fails, Twitter asserts, because Plaintiffs have not alleged that Twitter participated in a venture with the perpetrators or that Twitter should have known of Plaintiffs’ alleged sex trafficking. Id. at 19-21.
Twitter further asserts that even if Plaintiffs’ Section 1595 claim is not subject to immunity under CDA § 230, their remaining claims are nonetheless barred because FOSTA removes immunity only for claims asserted under Section 1595. Id. at 21-22 (citing Kik, 482 F.Supp.3d at 1249; M. L. v. Craigslist Inc., 2020 WL 6434845, at *9-10 (W.D. Wash. Apr. 17, 2020); Doe v. Bates, 2006 WL 3813758, at *18-20 (E.D. Tex. Dec. 27, 2006); M.A. ex rel. P.K. v. Vill. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1054-55 (E.D. Mo. 2011);
Twitter argues further that Plaintiffs fail to state viable claims under
With respect to Plaintiffs’ negligence claims (Claims Six through Nine), Twitter challenges the negligence per se and negligent infliction of emotional distress claims (Claims Eight and Nine) on the basis that they are not independent causes of action. Id. at 23 (citing J.B. v. G6 Hospitality LLC, 2020 WL 4901196, at *11; Sinclair for Tucker v. Twitter, Inc., 2019 WL 10252752, at *7 (N.D. Cal. Mar. 20, 2019)). As to the two remaining negligence claims (Claims Six and Seven), Twitter argues that they fail because Plaintiffs have not alleged that Twitter owed them any duty. Id. (citing Worldwide Media, Inc. v. Twitter, Inc., 2018 WL 5304852, at *8-9 (N.D. Cal. Oct. 24, 2018)). According to Twitter, Plaintiffs’ allegations that “Twitter had a duty to protect” them because it knew of the Videos and failed to take them down (FAC ¶¶ 112, 128, 194-95) are insufficient because a defendant can only be liable for negligence based on failure to act where there is a special relationship between the parties and Plaintiffs have not alleged such a relationship. Id. at 24.
Twitter contends Plaintiffs’ claim under
Finally, Twitter argues that Plaintiffs’ UCL claim is insufficiently pled because Plaintiffs have not alleged any economic injury and therefore, they do not have standing to assert the claim. Id. at 24 (citing Huynh v. Quora, Inc., 2019 WL 11502875, at *7 (N.D. Cal. Dec. 19, 2019)). Twitter further contends Plaintiffs have not alleged an unfair business practice because: 1) they have not pled any statutory violation and therefore have not alleged an unlawful act by Twitter; and 2) “To the extent Plaintiffs’ claim is premised on an alleged misrepresentation (¶ 230), it fails to meet Rule 9(b) because Plaintiffs do not allege with particularity a misrepresentation by Twitter.” Id. (citing Letizia v. Facebook Inc., 267 F. Supp. 3d 1235, 1244 (N.D. Cal. 2017)). Twitter also argues that the claim fails because Plaintiffs have not alleged actual reliance, having failed to allege that they “ever used Twitter, saw or read its policies, or that seeing those policies resulted in an economic injury.” Id.
2. Opposition
In their Opposition, Plaintiffs reject Twitter’s challenges under CDA § 230, arguing that the claims in this case are based on just the sort of knowing conduct that Congress intended to exempt from Section 230 when it enacted FOSTA. Opposition at 1. In particular, they assert that Twitter knew that the Videos were being widely distributed on its platform and that they contained child pornography created as a result of sex trafficking and deliberately allowed the posts to remain on Twitter. Id.
First, Plaintiffs argue that they have sufficiently alleged their claims under the TVPRA, which FOSTA exempts from CDA § 230, both on the basis of direct sex trafficking under Section 1591(a)(1) and as a beneficiary of sex trafficking under Section 1591(a)(2). Id. at 3. With respect to direct sex trafficking, Plaintiffs point to the language of Section 1591(a)(1), providing for liability for a perpetrator who “knowingly . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person,” while “knowing, or . . . in reckless disregard of the fact . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act[.]” Id. (quoting
Plaintiffs further assert that child pornography can be the basis for a TVPRA claim under Section 1591(a)(1), including in cases where the perpetrator procures pornographic material without having direct
Plaintiffs argues further that their allegations are sufficient as to the second phrase of Section 1591(a)(1), requiring that the conduct that is the basis for the claim must have been “knowing, or . . . in reckless disregard of the fact . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act[.]” Id. at 5-6. According to Plaintiffs, a “commercial sex act” is defined under the TVPRA as “ ‘any sex act, on account of which anything of value is given to or received by any person[.]’ ” Id. at 6 (quoting
Plaintiffs also argue that they state a claim on the basis of beneficiary liability under Section 1595(a) and Section 1591(a)(2), addressing the requirements of both provisions; according to Plaintiffs, Sections 1591(a)(2) and 1595(a) “have similar provisions for those who benefit financially, and distinct requirements for participation in a venture and the requisite level of knowledge.” Id. at 6.
With respect to whether Plaintiffs have alleged that Twitter knowingly “benefited financially or by receiving anything of value,” Plaintiffs contend they have satisfied this requirement by alleging that Twitter both monetizes the CSAM on its platform and gains more viewers from CSAM, which makes the platform more popular and attracts advertisers. Id. at 6-7. In support of this argument, it points to B.M. v. Wyndham, 2020 WL 4368214, at *4 (N.D. Cal. July 30, 2020). Id. According to Plaintiffs, in that case the Court rejected the defendant’s argument that a plaintiff asserting a claim under Sections 1591(a)(2) and 1595(a) was required to show that the financial benefit “must [have] derive[d] directly from, and [been] knowingly received in exchange for, participation in a sex trafficking venture.” Id. at 7 (quoting B.M., 2020 WL 4368214, at *4 (internal citations omitted) (alterations added)). Instead, Plaintiffs assert, the court in B.M. found “that § 1595 claims could not be subjected to the same knowledge standard as § 1591 without undermining the ‘should have known’ language, and the Court concluded that it was sufficient to allege that the hotels knowingly received revenue from room rentals.” Id. (citing B.M., 2020 WL 4368214, at *4) (internal citations omitted).
Plaintiffs reject Twitter’s argument that “any benefit [it] receives must have a causal relationship to the sex trafficking[,]” arguing that the cases upon which it relies – Geiss v. Weinstein Co. Holdings LLC, 383 F.Supp. 3d 156, 169 (S.D.N.Y. 2019) and Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc., 2013 WL 6816174, at *16 (W.D. Ark. Dec. 24, 2013) – are not on point. Id. at 8 (citing Motion at 13, 15). Even if Twitter is correct,
Next, Plaintiffs address whether they have adequately alleged that Twitter participated in what it knew or should have known was a sex trafficking venture. Id. at 10-16. According to Plaintiffs, Sections 1591(a)(2) and 1595 contain distinct requirements. Id. at 10. “Participation in a venture” for the purposes of Section 1591(a)(2) means “knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).” Id. (quoting
As to the “common purpose” argument, Plaintiffs contend Twitter relies on cases interpreting the Racketeer Influenced and Corrupt Organizations Act (“RICO”) in support of such a requirement, but that these cases have no bearing on Plaintiffs’ TVPRA claims. Id. (citing Motion at 13 (citing United States v. Turkette, 452 U.S. 576 (1981); Washington v. Deleon, 2019 WL 11691424 (N.D. Cal. July 9, 2019))).
Plaintiffs argue that Twitter’s passive beneficiary argument also fails because it’s reliance on Afyare, 632 F. App’x at 286, is misplaced. Id. at 11-12. According to Plaintiffs, in Afyare the court offered an analogy “that a defendant who joins a soccer team whose members include sex traffickers who sponsor the team financially, does not violate § 1591(a)(2) unless that defendant commits ‘some overt act’ that ‘furthers the sex trafficking aspect of the venture.’ ” Id. at 11 (quoting Motion at 14). Plaintiffs argue that Twitter’s reliance on that analogy to argue that there must be “some overt act that furthers the sex trafficking aspect of the venture” should be rejected because “[t]he decision’s logic doesn’t apply where the beneficiary defendant is engaging in illegal acts.” Id. at 12. In particular, they assert, while playing soccer is a lawful venture, “CSAM possession and distribution are not.” Id. (citing
Next, Plaintiffs reject Twitter’s claims that it “did not know of the alleged sex trafficking” (Motion at 17), that “there is no allegation that any of these submissions informed Twitter that Plaintiffs were victims of sex trafficking” (Motion at 18), that “none of the reports or emails sent to Twitter about the videos indicated that Plaintiffs had been sex trafficked or that they involved commercial sex acts” (Motion at 21), and that Plaintiffs did not allege “that the videos would have, on their face, indicated to Twitter (or a reasonable viewer) that Plaintiffs had been trafficked and the videos involved commercial sex” (Motion at 18). Id. at 12. Plaintiffs argue that these claims are “misleading and meritless” in light of the allegations in the FAC. Id. at 12-13 (citing FAC ¶¶ 52-53, 57,
trafficking victim to be liable. Reckless disregard or constructive knowledge suffice for civil liability.” Id. (citing
Plaintiffs also point to Section 1595, which they contend under B.M. requires that they “allege that Twitter (1) “knowingly benefit[ted] financially or by receiving anything of value“; (2) from participation in a venture; (3) that they “knew or should have known [had] engaged in” sex trafficking.” ” Id. at 14 (quoting B.M., 2020 WL 4368214, at *4). They contend, “[t]he B.M. court determined, as most courts have, that the plaintiff “is not required to allege an overt act in furtherance of or actual knowledge of a sex trafficking venture in order to sufficiently plead her section 1595 civil liability claim[.]” ” Id. (quoting B.M., 2020 WL 4368214, at *4 and citing S.Y. v. Wyndham Hotels & Resorts, Inc. & Laxmi of Naples, LLC, No. 2:20-CV-619-JES-MRM, 2021 WL 1814651, at *4-5 (M.D. Fla. May 6, 2021); E.S. v. Best W. Int‘l, Inc., No. 3:20-CV-00050-M, 2021 WL 37457, at *3–4 (N.D. Tex. Jan. 4, 2021); M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d at 968–71 (S.D. Ohio 2019); S.J. v. Choice Hotels Int‘l, Inc., 473 F.Supp.3d 147, 152-54 (E.D.N.Y. 2020); Doe S.W. v. Lorain-Elyria Motel, Inc., Case No. 2:19-cv-1194, 2020 WL 1244192, *6-7 (S.D. Ohio Mar. 16, 2020)). Plaintiffs note that Afyare, upon which Twitter relies to assert that an overt act is required, was a criminal action, in contrast to B.M., and argue that under B.M. Plaintiffs are not required to plead a § 1595 claim under a § 1591 standard. Id. (citing B.M., 2020 WL 4368214, at *3; J.C. v. Choice Hotels Int‘l, Inc., No. 20-CV-00155-WHO, 2020 WL 6318707, at *7 (N.D. Cal. Oct. 28, 2020)). Plaintiffs also argue that Twitter‘s reliance on M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 966 (S.D. Ohio 2019) is misplaced because is mischaracterizes the facts and holding of that case. Id. at 14-15. According to Plaintiffs, they have “sufficiently alleged that Twitter had constructive and actual knowledge of Plaintiffs’ sex trafficking, which it could see for itself; the main crime happened in plain sight.” Id. at 16.
Plaintiffs strenuously disagree with Twitter‘s characterization of the legislative history of FOSTA and its argument that Congress intended to create only a narrow exception for bad actors like Backpage. Id. at 16-19. Plaintiffs argue that in any event, they have alleged conduct that is sufficient to fall within the exception, and the question of “how Twitter‘s actions compare to Backpage is a factual question that cannot be resolved at this stage of the litigation.” Id.
Plaintiffs also argue that even apart from FOSTA,
Further, Plaintiffs assert, the stated purpose for
Plaintiffs also argue that
Plaintiffs argue that the Court should decline to follow the case cited by Twitter, Doe v. Bates, 2006 WL 3813758 (E.D. Tex., Dec. 27, 2006), which is a “non-binding, first of its kind, federal decision extending CDA immunity to a civil suit alleging receipt and possession of child pornography.” Id. at 23. According to Plaintiffs, neither of the cases upon which the Texas district court relied, Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) and Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 537 (E.D. Va. 2003), aff‘d, No. 03-1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004), involved child pornography. Id. They also contend the reasoning of the Texas case is wrong to the extent it treats child pornography in the same way courts have treated defamatory statements instead of treating it as contraband. Id. at 23-24.
According to Plaintiffs, given that Congress made clear that the protection of children was paramount when
Plaintiffs also challenge Twitter‘s argument that their claims under
Next, Plaintiffs argue that
Finally, Plaintiffs argue that their state law claims are adequately alleged and should be allowed to proceed. As to the negligence claims, they assert that it is apparent from the FAC that these claims are based on different theories and California‘s Civil Jury Instructions treat them as separate causes of action. Id. at 28. To the extent negligence per se operates as a presumption to establish a duty of care rather than a separate claim, Plaintiffs argue, “that simply means that Plaintiffs’ allegations of Twitter‘s multiple violations of its statutory duties should be read in tandem with its negligence claims.” Id. (citing Tinoco v. San Diego Gas & Elec. Co., No. 17-CV-2433-BAS-JLB, 2018 WL 4562479, at *2 (S.D. Cal. Sept. 21, 2018)). Plaintiffs also argue that they state a claim for violation of California‘s UCL based on “unlawful” conduct because “Twitter‘s criminal, aiding and abetting conduct is actionable under § 17200.” Id. at 29 (citing Chetal v. Am. Home Mortg., No. C 09-02727 CRB, 2009 WL 2612312, at *4 (N.D. Cal. Aug. 24, 2009); Plascencia v. Lending 1st Mortg., 583 F. Supp. 2d 1090, 1098 (N.D. Cal. 2008)). Twitter‘s argument that Plaintiffs do not have standing on this claim because they cannot seek “the full spectrum of damages” also falls short, Plaintiffs contend, as “the availability of a certain remedy is not relevant to a determination of standing to assert the claim.” Id. (citing Finelite, Inc. v. Ledalite Architectural Prods., No. C-10-1276 MMC, 2010 WL 3385027, at *2 (N.D. Cal. Aug. 26, 2010)).
3. Reply
In its Reply, Twitter reiterates its arguments that it cannot be held liable as either a perpetrator of sex trafficking under
Twitter argues further that the cases cited by Plaintiffs in support of their reading of Section 1591(a)(1), United States v. Flanders, 752 F.3d 1317, 1330 (11th Cir. 2014) and United States v. Tollefson, 367 F. Supp. 3d 865, 878-80 (E.D. Wis. 2019), are not on point because in those cases, the court “determined that each defendant violated Section 1591(a)(1) because they procured a person for commercial sex using electronic means, i.e., they used the internet to communicate with the victims and to pay them to engage in recorded sex acts, similar to what the Perpetrators did here.” Id. at 3 (citing Flanders, 752 F.3d at 1330; Tollefson, 367 F. Supp. 3d at 878-80). According to Twitter, Flanders and Tollefson “revolved around whether Section 1591 covered situations in which the defendant was not physically present during the alleged sex trafficking, not whether the challenged conduct could apply to an object (such as a video) instead of a person.” Id.
Twitter also repeats its argument that Plaintiffs, by their own admission, cannot satisfy the requirement under Section 1591(a) that a defendant must have known that a victim “will in the future [be] cause[d]” to engage in a commercial sex act given that Plaintiffs’ allegations establish that “the venture was over at the time Twitter allegedly refused to remove the Videos from its platform, . . . making it impossible for Twitter to know that its alleged failure to act would likely cause Plaintiffs to engage in commercial sex acts in the future.” Id.
Twitter also rejects Plaintiffs’ arguments as to their claim that Twitter is liable as a beneficiary of sex trafficking under Section 1591(a)(2). Id. at 3-10. It again argues that it did not participate in any “venture” for the purposes of this subsection because it was not “associated in fact” with the perpetrators. Id. at 4. Twitter acknowledges that this term is not defined under Section 1591 but argues it is reasonable to look to the RICO cases cited in the Motion to understand its meaning. Id. Twitter reiterates its argument that these cases support the conclusion that to be engaged in a “venture” under Section 1591 the participants must have a common purpose, which Plaintiffs fail to allege. Id. Twitter notes that “[t]his construction of “venture’ is implicit to the Afyare court‘s holding that Section 1591(a)(2) requires proof of a sex trafficking venture and that “[t]wo or more people who engage in sex trafficking together are a sex-trafficking venture.’ ” Id. n. 4 (quoting United States v. Afyare, 632 F. App‘x 272, 279-86 (6th Cir. 2016)).
Moreover, Twitter contends, under Section 1591the common purpose that is alleged must involve the particular sex trafficking venture involving the plaintiff. Id. at 4-5 (citing S.J. v. Choice Hotels Int‘l, Inc., 473 F. Supp. 3d 147, 154 (E.D.N.Y. 2020); Doe v. Kik, 482 F. Supp. 3d 1242, 1251 (S.D. Fla. 2020); J.B. v. G6 Hospitality, LLC, 2020 WL 4901196, at *10 (N.D. Cal. Aug. 20, 2020)). Plaintiffs fail to meet this requirement as well, Twitter argues. Id. at 5. Twitter argues further that “[f]inding a venture between Twitter and the Perpetrators based on a standard platform-user relationship also makes no sense considering Twitter‘s userbase, which numbers in the hundreds of millions.” Id. at 6 (citing FAC ¶ 23; J.B., 2020 WL 4901196, at *10 (“Craigslist cannot be deemed to have participated in all ventures arising out of each post on its site.“)).
Twitter also asserts that Plaintiffs’ claim under Section 1592(a)(2) fails because the FAC does not allege any “active participation” by Twitter, arguing again that Plaintiffs must allege overt acts by Twitter in furtherance of the venture. Id. According to Twitter, Plaintiffs do not dispute that this is a requirement but instead argue, without authority, that its denial of the requests to remove the Videos was an affirmative act that satisfies this requirement. Id. (citing Opposition at 12). Twitter contends this argument “conflicts with the FAC itself, which is clear that Plaintiffs were allegedly harmed by the failure to immediately remove the Videos.” Id. (citing FAC ¶¶ 124-25). In any event, they assert, Plaintiffs’ argument fails because “Twitter‘s failing to act is not “affirmative conduct’ ” and “the nine-day removal time frame is not tantamount to an affirmative act on Twitter‘s part.” Id. (citing Motion at 14-15 (quoting Geiss v. Weinstein Co. Holdings, LLC, 383 F. Supp. 3d 383, 169 (S.D.N.Y. 2019)); Bradley Bergeron v. Monex Deposit Co., 2020 WL 6468457, at *6–7 (C.D. Cal. Aug. 18, 2020); Gressett v. Contra Costa Cty., 2013 WL 2156278, at *17 (N.D. Cal. May 17, 2013)). Even if Twitter‘s inaction were deemed an overt act, it argues, it would still be insufficient because it did not further the sex trafficking venture. Id. at 6 n. 6 (citing Kik, 482 F. Supp. 3d at 1251).
Twitter reiterates its argument that Plaintiffs’ claim under Section 1591(a)(2) also fails because the FAC does not plead that Twitter knowingly benefited from its participation in Plaintiffs’ alleged sex trafficking. Id. at 7-8. Twitter rejects Plaintiffs’ attempt to distinguish Geiss and Kolbek, cited in the Motion, arguing that “the specific procedural posture and facts of those cases are irrelevant to the legal holding about what the statute requires.” Id. at 7.
More importantly, Twitter argues, “the Opposition never explains how Twitter could have received a benefit from Plaintiffs’ alleged sex trafficking when none of the broad allegations regarding how Twitter makes money are connected to what happened to them.” Id. Twitter contends the “FAC does not allege that there were any advertisements, or promoted Tweets associated with the Videos, nor does it allege that Twitter obtained (let alone licensed) any data related to the Videos.” Id. Moreover, it argues, the allegations that Twitter ” “continued to distribute the CSAM that it had monetized after’ John Doe #1 and his mother reported it” are not supported by any specific facts and therefore do not raise a plausible inference that Twitter received a benefit from the Videos. Id. at 7-8 (citing Opposition at 8-10 (citing FAC ¶¶ 52-54)).
Twitter argues further that the Opposition also “does not provide any other facts that would establish the “causal relationship’ between receipt of a benefit and Twitter‘s “actual knowledge of that causal relationship.’ ” Id. at 8. Twitter rejects Plaintiffs’ argument that it has satisfied this requirement by alleging that Twitter‘s conduct was motivated by the fact that “CSE content is “highly sought-after’ on Twitter and Twitter “makes significant revenue
Next, Twitter rejects Plaintiffs’ argument that they have satisfied the “actual knowledge” requirement of Section 1591(a)(2) by alleging facts showing “reckless disregard or constructive knowledge.” Id. at 9. Twitter argues that this standard is incorrect and that “[c]ourts have repeatedly held that Section 1591(a)(2) requires a defendant to have actual knowledge of the sex trafficking venture involving the plaintiff to constitute a criminal violation suffices for a Section 1591(a)(2) violation.” Id. at 9 (citing Kik, 482 F. Supp. 3d at 1251). Twitter contends Plaintiffs also fail to establish in the Opposition that it had actual knowledge as the allegations they point to do not “demonstrate that Twitter understood that Plaintiffs were the victims of sex trafficking and the acts depicted in the Videos were commercial sex acts.” Id. (citing Opposition at 5, 12-14).
Twitter concedes that Plaintiffs allege “that John Doe #1 emailed saying Plaintiffs “were baited, harassed, and threatened to take these videos,’ ” but contends “that is simply insufficient to establish Twitter‘s actual knowledge of the alleged sex trafficking” because “[f]rom John Doe #1‘s email Twitter cannot tell whether Plaintiffs were harassed and baited by friends or an adult, for example, and Twitter cannot tell whether the harassment caused them to engage in the sex acts, film them, or share the Videos with others.” Id. at 9-10 (citing Opposition at 13 (citing FAC ¶ 123)).
Twitter reiterates its arguments that Congress intended only to create a narrow exception to
Twitter also rejects Plaintiffs’ argument that
Twitter argues that even if Plaintiffs’ claim under Section 1595 is not barred under
Twitter argues further that “the FAC alleges no facts showing that Twitter “should have known’ that the Videos involved sex trafficking conduct – i.e., the exploitation of children for commercial sex purposes,” despite the arguments in the Opposition to the contrary. Id. at 15-16 (citing Motion at 20-21; Reply at 9-10; Opposition at 15). According to Twitter, “[t]he Opposition‘s reliance on Twitter‘s alleged “general knowledge’ of CSE content on its platform also fails because such knowledge does not demonstrate Twitter should have known of what specifically happened to Plaintiffs.” Id. at 16 (citing A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp. 3d 921, 937-38 (D. Oregon 2020)).
Twitter reiterates it position that all of Plaintiffs’ remaining claims are barred under
As to Twitter‘s arguments that Plaintiffs have failed to state viable state law claims, Twitter notes that Plaintiffs did not address its arguments related to
Twitter argues as to the products liability claim that Plaintiffs’ reliance on Lemmon v. Snap to argue that
Twitter argues that Plaintiffs’ Opposition fails to establish that they have viable negligence claims because if does not address Twitter‘s argument that it owed Plaintiffs no duty. Id. at 20 (citing Motion at 23-24; GN Resound A/S v. Callpod, Inc., 2013 WL 1190651, at *5 (N.D. Cal. Mar. 21, 2013)). Nor have Plaintiffs “established that Twitter violated any law or statute that would give rise to a presumption of negligence,” Twitter contends, “and Plaintiffs’ own authority agrees that negligence per se is not an independent claim.” Id.
Finally, Twitter argues that the Opposition fails to establish that Plaintiffs have standing on their UCL claim. Id. at 20-21. First, to the extent that the Opposition “seemingly argues that Plaintiffs have standing to bring a UCL claim because they suffered economic injury as a result of the “monetization and dissemination of Plaintiffs’ images and likenesses’ by Twitter[,]” Twitter rejects that argument. Id. (citing Opposition at 29-30 (citing Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 811 (N.D. Cal. 2011))). According to Twitter, Fraley does not support Plaintiffs’ position because in that case, the “plaintiffs alleged that Facebook “fail[ed] to compensate them for their valuable endorsement of third-party products and services’ when it took their image and name to create “Sponsored Stories.’ ” Id. (quoting 830 F. Supp. 2d at 790). Twitter contrasts the allegations in the FAC, which “alleges that advertisements or promoted Tweets are “displayed intermixed between tweets’ ” but does not allege “that Plaintiffs’ image or name was used to endorse any product or used in any advertisement.” Id. at 20-21.
Twitter also rejects Plaintiffs’ reliance on its alleged “criminal, aiding and abetting conduct” in support of UCL standing, arguing that this theory (which was raised for the first time in the Opposition) fails because “[a]iding and abetting requires not only knowledge [of the complained of act], but “substantial assistance o[r] encouragement’ of another‘s tort.” Id. at 21 (citing Opposition at 29; quoting Chetal v. Am. Home Mortg., 2009 WL 2612312, at *4 (N.D. Cal. Aug. 24, 2009)). Plaintiffs have not alleged such facts, Twitter asserts. Id.
For these reasons, Twitter asks the Court to dismiss all of Plaintiffs’ claims with prejudice. Id.).
4. Amicus Brief
In addition to the briefing supplied by the parties, a group of anti-trafficking organizations have submitted an amicus brief addressing Congress‘s intent in enacting FOSTA. These organizations contend Congress intended to afford greater protection to victims of online sex trafficking by abrogating the broad immunity afforded under
III. ANALYSIS
A. Legal Standards Under Rule 12(b)(6)
A complaint may be dismissed under
In ruling on a motion to dismiss under
B. The TVPRA Claims (Claims One and Two)
Plaintiffs assert two claims against Twitter under the TVPRA – a claim for direct sex trafficking and a claim for beneficiary liability. For the reasons set forth below, the Court finds that Plaintiffs fail to state a claim for direct sex trafficking and therefore does not reach the question of whether that claim is barred under
1. Direct Sex Trafficking
Both sides rely on the plain language of Section 1591(a)(1) in support of their arguments relating to the sufficiency of Plaintiffs’ allegations that Twitter engaged in direct sex trafficking in violation of the TVPRA. Twitter argues that the series of verbs in the provision relate to a “person” and that here, Twitter‘s alleged conduct relates not to a person but to the Videos. Plaintiffs, on the other hand, points to the words “by any means” in Section 1591(a)(1) in support of their reading of the provision. The Court finds Twitter‘s argument more persuasive.
Section 1591(a)(1) contains a series of verbs, all of which relate to a “person.” One of the verbs – the word “advertises” – might plausibly be read to fit the allegations in the FAC as a video posted on Twitter could, at least as a matter of grammar, advertise a “person” but Plaintiffs don‘t claim that Twitter “advertised” them. The verbs on which Plaintiffs rely (“provides“, “obtains” and “maintains“), on the other hand, do not lend themselves to the reading Plaintiffs suggest and Plaintiffs have pointed to no authority that supports their interpretation of Section 1591(a)(1).
Plaintiffs’ reliance on United States v. Tollefson, 367 F. Supp. 3d 865, 878-80 (E.D. Wis. 2019) to support their reading of Section 1591(a)(1) is misplaced. In that case, the defendant was criminally charged under Section 1591(a)(1) on the basis that he had “solicited” a child using an online chat, which he used to communicate with the victim and to persuade her to create and send him pornographic content using her phone. 367 F. Supp. 3d at 867-68. Section 1591(a)(1) expressly allows for criminal liability where a defendant “solicits by any means a person” and the conduct at issue in that case falls comfortably within that language. Plaintiffs here do not, however, allege any solicitation by Twitter. Therefore, the Court finds that Plaintiffs do not state a claim for direct sex trafficking under Section 1591(a)(1) and does not reach the question of
2. Beneficiary Liability
The more difficult issue is whether Plaintiffs have stated a claim under Section 1591(a)(2) and, if they have, whether Twitter is immune from liability under
Although the post-FOSTA case law addressing the requirements of Section 1595 and 1591(a)(2) as they relate to third-party content and ICS providers is scant, a series of cases in which victims of sex trafficking have sought to impose civil liability against hotel chains shed light on the pleading requirements for such claims in other contexts. In those cases, courts have addressed the significance of the fact that the “language of § 1591 differs from the language of § 1595” in that “the former does not have a constructive knowledge element manifested by “should have known’ language.” M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 969 (S.D. Ohio 2019). In M.A., and in a number of cases that have adopted the reasoning of that case, the court “rejected the application of the criminal definition to civil claims under the TVPRA.” A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp. 3d 921, 937 (D. Or. 2020) (citing M.A. 425 F. Supp. 3d at 969 (S.D. Ohio 2019); A.B. v. Marriott Int‘l, Inc., 455 F.Supp.3d 171, 186–88 (E.D. Pa. 2020); B.M. v. Wyndham Hotels & Resorts, Inc., 2020 WL 4368214 at *3 (N.D. Cal. July 30, 2020)).
In M.A., the plaintiff was a victim of sex trafficking that occurred at hotels owned by the defendant and she sued under Sections 1595 and 1591(a)(2). Her claims were based on the theory that the hotel chain benefited from the rental of the rooms where she was trafficked and knew or should have known that trafficking was occurring there based on various signs of sex trafficking that should have been obvious to hotel staff. 425 F. Supp. 3d at 962. The court found that the plaintiff adequately alleged that the hotel chain benefited from the sex trafficking based on the rental of its rooms. Id. at 965. It further found that she alleged sufficient facts to show that it “knew or should have known” that the venture was engaged in sex trafficking, applying the looser knowledge requirement of Section 1595 rather than the knowledge requirement that applies to criminal claims under Section 1591(a)(2). Id. at 968. It cited both to allegations that there were obvious signs of sex trafficking that hotel staff should have recognized and that the hotel chain was “on notice about the prevalence of sex trafficking generally at their hotels and failed to take adequate steps to train staff in order to prevent its occurrence.” Id. at 969.
Next, the M.A. court addressed what the plaintiff was required to allege to meet the “participation in a venture” requirement of Section 1595. Like Twitter here, the defendant in M.A. “rel[ied] extensively on United States v. Afyare, 632 F. App‘x 272 (6th Cir. 2016), which addresses the meaning of “participation in a venture’ under § 1591.” Id. at 968. As the M.A. court explained, “[i]n Afyare, a panel of the Sixth Circuit affirmed the district court‘s finding that § 1591(a)(2) “require[s] that a defendant actually participate and commit some “overt act’ that furthers the sex trafficking aspect of the venture.’ ” Id. (quoting Afyare, 632 F. App‘x at 286). Thus, under Section 1591, “the venture had to be a sex-trafficking venture and the “participation’ had to be an “overt act’ that furthers the sex trafficking aspect of the venture.’ ” Id. (quoting Afyare, 632 F. App‘x at 286). Further, Afyare held that under Section 1591 a defendant had to be ” “associated for the purpose of furthering the sex trafficking.’ ” Id. The court in M.A. found, however, that this criminal standard did not apply to the plaintiff‘s civil claim under Section 1595, concluding that a defendant “need not have actual knowledge of the sex trafficking in order to have participated in the sex trafficking venture
The M.A. court‘s interpretation of Section 1595 and the meaning of “participation in a venture” under that section was based on the following statutory analysis:
Some Defendants have relied on the definition of “participation in a venture” supplied in § 1591(e)(4). Generally, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). But this presumption does not apply where “there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Id. Here, § 1591(e) purports to only apply to “this section,” i.e., § 1591. See, e.g., Gilbert v. United States Olympic Committee, No. 18-cv-00981-CMA-MEH, 2019 WL 1058194, at *9, *10 (D. Colo. Mar. 6, 2019) (noting that “there are persuasive reasons to conclude ... that the term “venture’ is defined differently in § 1591(a)(2) than it is in § 1589(b)” and “neither §§ 1589 nor 1595 define “venture’ “).
In addition to the language in § 1591(e) limiting the definitions to that section, applying the definition of “participation in a venture” provided for in § 1591(e) to the requirements under § 1595 would void the “known or should have known” language of § 1595. Such a construction would violat[e] the ” “cardinal principle of statutory construction’ that “a statute ought, upon the whole, to be construed so that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). Section 1591(e)(4) provides the following definition of “participation in a venture“: “knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).” The term “participation in a venture” in § 1591 thus imports a state of mind requirement—the participation must be “knowing.” Although § 1591(a)(2) also criminalizes some action taken with less than actual knowledge, that is, “reckless disregard, such “reckless disregard” provision applies only to the requirement “that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.” § 1591 (a). It does not lessen the scienter requirement of actual knowledge as to participation or the venture‘s true ends.
425 F. Supp. 3d 959, 969–70. The court therefore concluded that ” “participation’ under § 1595 does not require actual knowledge of participation in the sex trafficking itself.” Id. at 970.
The court in M.A. went on to find that “[i]n the absence of a direct association, “the plaintiff could adequately allege participation under Section 1595 only by alleging facts showing “a continuous business relationship between the trafficker and the hotels such that it would appear that the trafficker and the hotels have established a pattern of conduct or could be said to have a tacit agreement.” Id. The court found that the plaintiff met this requirement by alleging that the defendant rented rooms
District courts, including in this district, have found the statutory analysis in M.A. supporting its interpretation of Section 1595 to be persuasive. In B.M. v. Wyndham Hotels & Resorts, Inc., Judge Freeman stated, “The Court agrees with the statutory construction analysis in M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 969 (S.D. Ohio 2019), adopted by Judge Orrick in J.C. v. Choice Hotels Int‘l, Inc., No. 20-CV-00155-WHO, 2020 WL 3035794, at *1, n. 1 (N.D. Cal. June 5, 2020) that applying the “participation in a venture’ definition from the criminal liability section of the TVPRA to the civil liability section of the TVPRA, “would void the “should have known” language in the civil remedy’ and “[t]his violates the “cardinal principle of statutory construction that a statute ought, upon the whole, to be construed so that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” ’ ” No. 20-CV-00656-BLF, 2020 WL 4368214, at *3 (N.D. Cal. July 30, 2020) (quoting J.C. v. Choice Hotels Int‘l, Inc., 2020 WL 3035794, at *1, n. 1 (quoting M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d at 969)).3 Thus, in B.M., the court concluded that the plaintiff was “not required to allege an overt act in furtherance of or actual knowledge of a sex trafficking venture in order to sufficiently plead her section 1595 civil liability claim” based on beneficiary liability under Section 1591(a)(2) against parent companies that owned hotels where the plaintiff was the victim of sex trafficking. Id.
The undersigned also finds the reasoning and analysis of M.A. to be persuasive and therefore concludes that as a general matter, where a plaintiff seeks to impose civil liability under Section 1595 based on a violation of Section 1591(a)(2), not only does the “known or should have known” language of Section 1595 apply (rather than the actual knowledge standard of Section 1591(a)) but such a claim also does not require that a plaintiff demonstrate an overt act that furthered the sex trafficking aspect of the venture in order to satisfy the “participation in a venture” requirement.
The hotel line of cases, however, does not answer the question of whether the same standards apply where a civil claim is asserted under Section 1591(a)(2) against an ICS provider and thus (arguably) falls within the ambit of
In addressing what the plaintiff was required to allege to fall under the FOSTA exemption to
The court in Kik reasoned as follows:
Significantly, because the hotel defendants were not interactive computer service providers, neither FOSTA nor CDA immunity were considered. The present case presents a different scenario, because Congress – in balancing the needs of protecting children and encouraging “robust Internet communication” – enacted a statute protecting interactive computer service providers from liability for their users’ content and conduct. If it were not for FOSTA, Defendants in this case would be completely immune from liability under the CDA.
47 U.S.C. § 230(c)(5) ; MySpace, 528 F.3d 413.To resolve Defendants’ Motion to Dismiss, this Court must consider the extent to which FOSTA has affected the immunity provided by the CDA. Again, FOSTA states that “[n]othing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit ... any claim in a civil action under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.”
47 U.S.C. § 230(e)(5)(A) (emphasis added). Plaintiff argues that as a result of FOSTA, “the exacting standard of “actual knowledge’ and “overt act’ employed in a criminal prosecution under § 1591 is replaced by [a] “constructive knowledge’ standard when a civil recovery is sought under the TVPA.” (DE [29], p. 21). But this argument would have the Court disregard the plain language and structure of FOSTA. “A statute should be interpreted so that no words shall be discarded as meaningless, redundant, or mere surplusage.” United States v. DBB, Inc., 180 F.3d 1277, 1285 (11th Cir. 1999) (quotation omitted).Defendants argue that the Congressional history of FOSTA shows that Congress only intended to create a narrow exception to the CDA for “openly malicious actors such as Backpage where it was plausible for a plaintiff to allege actual knowledge and overt participation.” (DE [33], p. 5) and that a finding of actual knowledge and overt participation in a venture of sexual trafficking is required to defeat CDA immunity. This is consistent with the language of FOSTA. By its terms, FOSTA did not abrogate CDA immunity for all claims arising from sex trafficking; FOSTA permits civil liability for websites only
“if the conduct underlying the claim constitutes a violation of section 1591.” And section 1591 requires knowing and active participation in sex trafficking by the defendants. Afyare, 632 Fed. Appx. at 286; see also Geiss v. Weinstein Co. Holdings, LLC, 383 F. Supp. 3d 156, 169 (S.D. N.Y. 2019) (“aiders and abettors of sex trafficking are liable under the TVPRA only if they knowingly “benefit[ ], financially or by receiving anything of value from participating in a venture which has engaged in’ sex trafficking“) (quoting 18 U.S.C. § 1591(a) ); Noble v. Weinstein, 335 F. Supp. 3d 504, 524 (S.D. N.Y. 2018) (“Plaintiff must allege specific conduct that furthered the sex trafficking venture. Such conduct must have been undertaken with the knowledge, or in reckless disregard of the fact, that it was furthering the alleged sex trafficking venture. In other words, some participation in the sex trafficking act itself must be shown.“).
Id. at 1250–51 (emphasis in original). The court went on to conclude that the plaintiff in that case had not pled a violation under Section 1591(a)(2) under the definitions and requirements that apply to criminal claims and therefore, that her claim did not fall within FOSTA‘s exemption to
The undersigned respectfully disagrees with the Kik court‘s analysis. In construing a statute, the Court starts with the language of the statute. Bailey v. United States, 516 U.S. 137, 145 (1995) (“We start, as we must, with the language of the statute.“). The Supreme Court has instructed, however, that context also matters and therefore, courts should “consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme.” Id. Further, where a statute is “remedial,” it “should be liberally construed.” Peyton v. Rowe, 391 U.S. 54, 65 (1968). There is no question that FOSTA is a remedial statute in that it carves out exceptions to
FOSTA consists of two clauses, with the first clause (“[n]othing in this section . . . shall be construed to impair or limit . . . any claim in a civil action under section 1595 of Title 18“) modified by the second clause (“if the conduct underlying the claim constitutes a violation of section 1591 of that title“).
Furthermore, the more natural reading of the second phrase of
of a violation of this chapter.”
Nor does the undersigned find persuasive the Kik court‘s finding that the legislative history supports its interpretation of FOSTA. The two isolated statements cited by the Kik court provide little guidance as to the very specific question of statutory interpretation presented here. Further, the parties and amici have pointed to numerous statements in the legislative history, often seeming to support conflicting conclusions, highlighting the risks of relying on statements made prior to passage of a bill to interpret the statute that was actually enacted. Here, the Court concludes that this issue is better resolved on the basis of the language of FOSTA as it
For these reasons, the Court concludes that Plaintiffs’ Section 1595 claim against Twitter based on alleged violation of Section 1591(a)(2) is not subject to the more stringent requirements that apply to criminal violations of that provision. Having reached that conclusion, the Court now must address whether Plaintiffs have adequately alleged: 1) that Twitter knowingly participated in a venture; 2) that it received a benefit from its participation; and 3) it knew or should have known that Plaintiffs were victims of sex trafficking.
a. Participation in a Venture
A “venture” is defined as “any group of two or more individuals associated in fact.”
The Court concludes that Plaintiffs’ allegations are sufficient to meet this requirement. In addition to the general allegations that Twitter enables sex trafficking on its platform, see, e.g., FAC ¶¶ 58-59 (alleging Twitter makes it hard for users to report CSAM and has received a lower rating than other platforms for its reporting structure); 61 (“Twitter permits large amounts of human trafficking and commercial sexual exploitation material on its platform, despite having both the ability to monitor it, and actual and/or constructive knowledge of its posting on the platform“); ¶¶ 64-69 (alleging that the number of reports by Twitter to the National Center on Missing and Exploited Children (“NCMEC“) of apparent child sexual abuse material on its platform is low compared to what other platforms report); ¶¶ 74-79 (alleging that Twitter hashtags help users find CSAM and that it rarely removes hashtags it knows are associated with CSAM); ¶¶ 80-84 (alleging that Twitter‘s search suggestion feature makes it easier for users to find CSAM), Plaintiffs also include specific allegations that support an inference that Twitter participated in a “venture” involving these Plaintiffs.
In particular, the FAC alleges that Twitter was specifically alerted that the Videos contained sexual images of children obtained without their consent on several occasions but either failed or refused to take action. First, John Doe # 1 and his mother both allegedly reported the CSAM
Two days later, Twitter allegedly sent John Doe #1 a response stating, “We‘ve reviewed the content, and didn‘t find a violation of our policies, so no action will be taken at this time.” Id. ¶ 120. John Doe #1 allegedly responded as follows:
What do you mean you don‘t see a problem? We both are minors right now and were minors at the time these videos were taken. We both were 13 years of age. We were baited, harassed, and threatened to take these videos that are now being posted without our permission. We did not authorize these videos AT ALL and they need to be taken down. We have a case number with the [Law Enforcement Agency] for these videos and this incident. Please remove this video ASAP and any videos linked to this one. There is a problem with these videos and they are going against my legal rights and they are again at (sic) the law to be on the internet. (capitalized emphasis in original).
FAC ¶ 123. The Videos allegedly remained on Twitter another seven days. FAC ¶ 124. Notably, Plaintiffs also allege that the user account @StraightBross, one of the accounts that allegedly posted the Videos, had been the subject of a citizen complaint in December 2019 alerting Twitter that this account carried links to “OBVIOUS CHILD PORN” but no action was taken on that complaint. FAC ¶ 101.
The Court finds that these allegations are sufficient to allege an ongoing pattern of conduct amounting to a tacit agreement with the perpetrators in this case to allow them to post videos and photographs it knew or should have known were related to sex trafficking without blocking their accounts or the Videos. Therefore, Plaintiffs have adequately alleged participation in a venture under Section 1595 in support of their beneficiary liability claim against Twitter.6
b. Receipt of a Benefit
“To state a claim under a section 1595(a) beneficiary theory,” Plaintiffs “must allege facts from which the Court can reasonably infer that” Twitter “knowingly benefit[ted] financially or by receiving anything of value[.]” B.M. at *4. In B.M., the court rejected the defendant‘s argument that the “‘benefit’ must derive directly from, and be knowingly received in exchange for, participating in a sex-trafficking venture[,]” finding that this approach improperly “reads a requirement
First, contrary to Twitter‘s repeated assertions, the FAC contains detailed allegations about how Twitter monetizes content, including CSAM, through advertising, sale of access to its API, and data collection. FAC ¶¶ 25, 30-41, 50-54. It further alleges that searching for hashtags that are known to relate to CSAM brings up promoted links and advertisements, offering a screenshot of advertising that appeared in connection with one such hashtag. FAC ¶ 76. Plaintiffs also specifically allege that the Videos of Plaintiffs were “monetized by Twitter and it receive financial benefit from [their] distribution on its platform.” FAC ¶ 196. While Twitter dismisses this allegation as conclusory, it is supported by allegation that the Videos were “viewed at least 167,000 times and retweeted 2,220 times for additional views,” FAC ¶ 195, and that “[t]he videos remained live approximately another seven days, resulting in substantially more views and retweets.” FAC ¶ 125. Read together, these allegations support a plausible inference that the Videos of Plaintiffs generated advertising and attracted users, both of which benefited Twitter.
The Court is not persuaded that either Geiss or Kolbek, cited by Twitter, requires a contrary result. In Geiss, the court concluded that officers who worked at the company of film producer Harvey Weinstein could not be held liable on the basis of beneficiary liability under Section 1591(a)(2) simply because they received a benefit from working for the company where that benefit was unrelated to any conduct that facilitated the alleged sex trafficking by Weinstein. 383 F. Supp. 3d 156, 169 (S.D.N.Y. 2019). The court reasoned that “there must be a causal relationship between affirmative conduct furthering the sex-trafficking venture and receipt of a benefit, with actual or, in the civil context, constructive knowledge of that causal relationship.” Id. Here, Plaintiffs allege that the benefit – increased advertising revenue and users – was the result of allowing the Videos to remain on Twitter, allowing for tens of thousands of views and retweets of the Videos. Therefore, Geiss is not on point.
Twitter‘s reliance on Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc., No. 10-CV-4124, 2013 WL 6816174, at *16 (W.D. Ark. Dec. 24, 2013) is also misplaced. In that case, the plaintiffs had been forced as children to become “spiritual wives” of a church leader and brought claims against various defendants, including the church, for sex trafficking in violation of Section 1595, alleging that they had benefited from the sex trafficking under Section 1591(a)(2). The court concluded that there was no evidence that the defendants were compensated for the sexual abuse and therefore, that plaintiffs failed to establish that they were the victims of “commercial sex trafficking” based on the definition of the term “commercial sex act” in Section 1591(e)(3). 2013 WL 6816174, at *16 (citing
Therefore, the Court concludes that Plaintiffs’ have adequately alleged receipt of a benefit for the purposes of their claim for beneficiary liability.
c. Knew or Should Have Known the Venture Was Engaged in Trafficking
While Twitter need not have actual knowledge of the sex trafficking in order to have participated in the sex trafficking venture for the purposes of Section 1595, Plaintiffs must allege at least that Twitter knew or should have known that Plaintiffs were the victims of sex trafficking at the hands of users who posted the content on Twitter. See B.M., 2020 WL 4368214, at *5. Twitter contends it had no way of knowing that the Videos might have been evidence of commercial sex trafficking, but this argument is hard to square with Plaintiffs’ allegations that they alerted Twitter that the Videos were created under threat when Plaintiffs were children and provided evidence of John Doe #1‘s age in response to Twitter‘s request for further information. Plaintiffs also allege that other Twitter users used the word “twinks” to describe the children in the Videos, which was “another indication that Plaintiffs were minors, and that this fact was evident from their appearance in the Videos. FAC ¶ 37. According to FAC, that term is used to describe “young boys or men” with “certain boyish characteristics such as ‘little to no body or facial hair; a slim to average build; and a youthful appearance.’ ” Id. (quoting Wikipedia). Therefore, the Court concludes this requirement is sufficiently alleged.
***
In sum, the Court finds that Plaintiffs have stated a claim for civil liability under the TVPRA on the basis of beneficiary liability and that the claim falls within the exemption to Section 230 immunity created by FOSTA.
C. Whether the FOSTA Exemption is Limited to Claims Asserted under Sections 1591 and 1595
Before addressing Plaintiffs’ remaining claims, the Court addresses Twitter‘s argument that when Congress enacted FOSTA, it intended to exempt from Section 230 immunity only claims asserted under Sections 1591 and 1595. This was the conclusion of the court in Kik, which found that the “plain language of [FOSTA] removes immunity only for conduct that violates
D. Claim Three (18 U.S.C. §§ 2258A and 2258B )
Section 2258A establishes a duty on the part of electronic communication service providers to report to the National Center for Missing & Exploited Children (“NCMEC“) “facts or circumstances from which there is an apparent violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography.”
Although Section 2258A establishes a duty to report under criminal law, that section does not purport to establish a private right of action. Rather, it provides that “knowing and willful failure” to make a report will result in the imposition of fines on the provider of up to $300,000. See
E. Claim Four (Personal Injuries Related To Sex Trafficking And Receipt And Distribution Of Child Pornography Under 18 U.S.C. §§ 2252A , and 2255 )7
Section 2255 creates a civil remedy for violations of certain sections of the
(a) In general. Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney‘s fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate.
While there is not a great deal of authority on this question, at least two courts have concluded that under Section 230, ICSs are immune from civil liability under 2252A and 2255. See Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *4 (E.D. Tex. Dec. 27, 2006); M.A. ex rel. P.K. v. Vill. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1051 (E.D. Mo. 2011). The Bates court relied on the reasoning in Zeran v. Am. Online, Inc., 129 F.3d 327, 329
(4th Cir. 1997), explaining:
The Zeran court . . . noted the Congressional purpose of removing disincentives to self-regulation by internet service providers. If internet service providers such as Yahoo! could be liable for reviewing materials but ultimately deciding to allow them, they would likely chose not to regulate at all. Further, even simply responding to notices of potentially obscene materials would not be feasible because the sheer number of postings on interactive computer services would create an impossible burden in the Internet context. To the extent an internet service provider actually makes choices about its content, without immunity they would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability. While the facts of a child pornography case such as this one may be highly offensive, Congress has decided that the parties to be punished and deterred are not the internet service providers but rather are those who created and posted the illegal material[.]
2006 WL 3813758, at *4 (internal quotations and citations omitted). Thus, in Bates, the court concluded that while the exemption in Section 230(e)(1) does not prohibit the government from prosecuting an ICS provider under
In Zeran, the plaintiff sued AOL based on its alleged delay in taking down offensive posts by an unknown third party that included the plaintiff‘s telephone number and were resulting in the plaintiff being harassed and receiving death threats. 129 F.3d at 329. The plaintiff alleged that he repeatedly called AOL requesting that the posts be removed and was told that they would be, but that AOL failed to take them
[O]nce a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting. In this respect, Zeran seeks to impose liability on AOL for assuming the role for which § 230 specifically proscribes liability—the publisher role.
Plaintiffs argue that Bates was wrongly decided because Zeran involved defamatory speech rather than child pornography. According to Plaintiffs, unlike defamatory speech, child pornography “is at once contraband, beyond the covering of First Amendment speech protection, evidence of criminal child abuse, and an ongoing sexual crime against a child” and therefore, requiring ICS providers to remove pornography does not require them to exercise “traditional editorial functions.” Opposition at 23. While this argument has some force, it does not square with Ninth Circuit authority, which has found that “[t]o avoid chilling speech, Congress ‘made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.’ ” Gonzalez v. Google LLC, 2 F.4th 871, 886 (9th Cir. 2021) (citing Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (quoting Zeran, 129 F.3d at 330)). In Carafano, for example, the third-party content was not only defamatory but also included the creation of a fake profile that resulted in threats to the plaintiff and her son. 339 F.3d at 1122. The Ninth Circuit recognized that the plaintiff had been the victim of a “cruel and sadistic identity theft” but concluded, “despite the serious and utterly deplorable consequences that occurred in this case, . . . that Congress intended that service providers such as Matchmaker be afforded immunity from suit.” Id. at 1121, 1125.8
The undersigned therefore finds the reasoning and holding of Bates and M.A. ex rel. P.K. v. Vill. Voice Media Holdings on this question to be in line with Ninth Circuit authority and concludes that immunity under Section 230 is not defeated by the fact that the third-party content at issue is illegal child pornography. Therefore, the Court concludes that this claim fails under Section 230.
1. Claim Five (California Products Liability)
Plaintiffs’ products liability claim is based on the theory that Twitter‘s platform is unreasonably dangerous and therefore defective because it is designed so as to make it easy for child predators and sex traffickers to quickly disseminate CSAM on a wide scale while making it difficult to report or block the dissemination of such material. Plaintiffs attempt to avoid Section 230 on the ground that the claim is not based on Twitter‘s conduct as a publisher of information but instead, on a defective product, citing Lemmon v. Snap, Inc., 995 F.3d 1085, 1090 (9th Cir. 2021) in support of their position. That case is distinguishable from the facts here, however.
In Lemmon v. Snap, the plaintiffs were parents of two boys who were killed in a high-speed car accident where it was alleged that a speed-filter offered by the defendant‘s smartphone application, Snapchat, played a role in the accident. 995 F.3d at 1087-90. The speed filter allowed Snapchat users to superimpose a filter over photos or videos captured through Snapchat recording their real-life speed, and it was alleged that the speed filter incentivized young drivers to drive at high speeds because it was suspected by Snapchat users that logging a speed of over 100 MPH in a user video would result in “rewards” from Snapchat. Id. at 1088-89. It was further alleged that the defendant was aware of the danger of the speed filter because there had been a “series of news articles about this phenomenon; an online petition that ‘called on Snapchat to address its role in encouraging dangerous speeding‘; at least three accidents linked to Snapchat users’ pursuit of high-speed snaps; and at least one other lawsuit against Snap based on these practices.” Id. at 1089-90.
The plaintiffs in Lemmon brought a products liability claim based on negligent design against Snap, the company that owns Snapchat, and Snap asserted that it was entitled to immunity under Section 230. Id. at 1090. The district court agreed but the Ninth Circuit reversed, finding that the plaintiffs’ claims did not treat the defendant as a publisher or speaker. Id. at 1091. The court reasoned as follows:
It is . . . apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat‘s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs from” its distinct capacity as a product designer. Barnes, 570 F.3d at 1107. This is further evidenced by the fact that Snap could have satisfied its “alleged obligation“—to take reasonable measures to design a product more useful than it was foreseeably dangerous—without altering the content that Snapchat‘s users generate. Internet Brands, 824 F.3d at 851. Snap‘s alleged duty in this case thus “has nothing to do with” its editing, monitoring, or removing of the content that its users generate through Snapchat. Id. at 852. . . . That Snap allows its users to transmit user-generated content to one another does not detract from the fact that the Parents seek to hold Snap liable for its role in violating its distinct duty to design a reasonably safe product. . . . Though publishing content is “a but-for cause of just about everything” Snap is involved in, that does not mean that the Parents’ claim, specifically, seeks to hold Snap
responsible in its capacity as a “publisher or speaker.”
Id. at 1092 (emphasis added).
Here, as in Lemmon, Plaintiffs’ products liability claim is based on the allegation that the design of the Twitter platform is unreasonably dangerous. The facts here differ, however, from those in Lemmon because the nature of the alleged design flaw in this case – and the harm that is alleged to flow from that flaw – is directly related to the posting of third-party content on Twitter. In particular, Plaintiffs allege that Twitter‘s design, which is aimed at “enabling its users to disseminate information very quickly to large numbers of people” through such features as hashtags and algorithms, also enables “sex traffickers to distribute CSAM on a massive scale.” FAC ¶¶ 179-181. Conversely, they allege, Twitter is not “designed to enable its users to easily report CSAM, nor is it designed so that CSAM is immediately blocked pending review when reported.” Id. ¶ 182. Nor does Twitter “consistently deploy IP blocking, or other measures, to prevent users suspended by Twitter for disseminating CSAM from opening new accounts under different names[,]” Plaintiffs allege. These flaws, in essence, seek to impose liability on Twitter based on how well Twitter has designed its platform to prevent the posting of third-party content containing child pornography and to remove that content after it is posted. In other words, to meet the obligation Plaintiffs seek to impose on Twitter on this claim, Twitter would have to alter the content posted by its users, in contrast to the design defect alleged in Lemmon. Therefore, the Court concludes that Lemmon is not on point and that Plaintiffs’ products liability claim fails on the basis that Twitter is entitled to immunity as to that claim under Section 230 immunity.9
2. Claims Six through Nine (Negligence Claims)
Twitter challenges all of Plaintiffs’ negligence claims on the grounds that it is immune from liability on those claims under Section 230. It further asserts that the negligence per se and negligent infliction of emotional distress claims (Claims Eight and Nine) are not independent causes of action and that the remaining negligence claims (Claims Six and Seven) fail because Twitter does not owe Plaintiffs any duty. The Court finds that these claims fall within the scope of Section 230 and therefore does not reach Twitter‘s remaining arguments.
The essence of these claims is that Twitter breached a duty to Plaintiffs – and violated various criminal statutes –by failing to remove the Videos after being notified of them and instead allowing them to be broadly disseminated on Twitter. These claims seek to treat Twitter as a publisher of information, which is prohibited under Section 230. See In re Facebook, Inc., No. 20-0434, 2021 WL 2603687, at *9 (Tex. June 25, 2021) (finding that negligence claims against Facebook based on its failure to protect plaintiffs from sex traffickers who used its platform were barred under Section 230). Therefore, the Court finds that Plaintiffs’ negligence claims fail under Section 230.
3. Claim Ten (Distribution of Private, Sexually Explicit Material Under Cal. Civ. Code section 1708.85 )
A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction
of another, without the other‘s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.
Liability under section 1708.85(a) requires that Twitter intentionally distributed the Videos. Even assuming that Twitter‘s conduct amounted to intentional distribution once it was put on notice of the Videos, the allegations in the FAC make clear that at that point these Videos had already been posted by “another person,” namely, the owners of the user handles @StraightBross and @fitmalesblog. See FAC ¶¶ 89, 91, 99. Plaintiffs have not cited any contrary authority or even addressed Twitter‘s argument in their Opposition. Therefore, the Court concludes that Plaintiffs fail to state a claim under section 1708.85(a). Further, to the extent that this claim seeks to hold Twitter liable for failing to remove third-party content from its platform, the Court concludes that the claim is barred under CDA § 230 because it treats Twitter as a publisher.
4. Claim Eleven (Intrusion Into Private Affairs)
The tort of intrusion into private affairs has two elements: “(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 231 (1998), as modified on denial of reh‘g (July 29, 1998). Twitter does not argue in the Motion that Plaintiffs fail to state a claim for intrusion into private affairs and therefore, the Court assumes that Plaintiffs adequately allege such a claim. Nonetheless, the basis for this claim is Twitter‘s “role as a ‘republisher’ of material posted by a third party,” and therefore, the claim is barred by CDA § 230. Caraccioli v. Facebook, Inc., 700 F. App‘x 588, 590 (9th Cir. 2017) (holding that claim against Facebook for intrusion into private affairs based on Facebook‘s refusal to remove private photos and videos of the plaintiff from Facebook was barred under Section 230).
5. Claim Twelve (Invasion of Privacy Under California Constitution)
To establish an invasion of privacy claim under the California Constitution, a plaintiff must demonstrate three elements: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” Hill v. Nat‘l Collegiate Athletic Ass‘n, 7 Cal.4th 1, 39–40 (1994). Again, Twitter has not argued that Plaintiffs fail to state a claim as to this claim and the Court assumes that their claim is sufficiently alleged, but like the claim for intrusion into private affairs, this claim is based on Twitter‘s role as a “republisher” of third-party content and therefore is barred under CDA § 230.
6. Claim Thirteen (UCL Claim)
Twitter asserts that Plaintiffs do not have standing to assert their UCL
IV. CONCLUSION
For the reasons stated below, the Motion is DENIED as to Plaintiffs’ TVPRA claim based on beneficiary liability (Claim Two). The Motion is GRANTED as to Plaintiffs’ remaining claims, which are dismissed with prejudice.
IT IS SO ORDERED.
Dated: August 19, 2021
JOSEPH C. SPERO
Chief Magistrate Judge
Notes
At oral argument, Twitter argued, for the first time, that the narrow interpretation of FOSTA adopted in Kik is also consistent with
In the Motion, Twitter misstates the facts of M.A., stating that in that case “the court found a ‘venture’ because the plaintiff alleged she saw the beneficiary defendant and her trafficker exchanging high-fives . . . while speaking about ‘getting this thing going again.‘” Motion at 13. Actually, these are the facts of Ricchio v. McLean, 853 F.3d 553 (1st Cir. 2017), a case which the court in M.A. found was consistent with its own conclusions.
The Court rejects Twitter‘s argument that the venture was already over when the Videos were posted on Twitter and therefore Plaintiffs have not adequately alleged that Twitter knew that Plaintiffs would, in the future, be victims of sex trafficking as a result of Twitter‘s conduct. At oral argument, Twitter conceded that the posting of child pornography is a commercial sex act. Thus, regardless of when the Videos were created, the allegations that the Videos were being retweeted on a massive scale while they remained on the Twitter platform raise a plausible inference that Twitter‘s failure to remove the Videos would result in future commercial sex trafficking.
Although the FAC also relies on
Plaintiffs also point to CDA § 230(e)(1) in support of their argument that their claim under Section 2255 is exempt from immunity. Opposition at 24. As discussed above, that section provides that the immunity established under subsection (a) “shall [not] be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.” While Section 2255, which created civil liability for certain criminal offenses, is contained in chapter 110, it was enacted two years after Section 230. Thus, at the time Congress enacted Section 230(e)(1), the exemption it created in that section applied only to criminal enforcement of the provisions in chapter 110. Further, while Plaintiffs suggest that the bill adopting section 2255, the Protection of Children from Sex Predators Act of 1998, PL 105–314, 112 Stat 2974 (1998), reflected an intent on the part of Congress to abrogate Section 230 immunity as to ICS providers with respect to civil claims asserted under Section 2255, they have pointed to no language in Section 2255 or any specific legislative history to support that conclusion. Therefore, the Court concludes that CDA § 230(e)(1) does not exempt Plaintiffs’ claim under Section 2255 from immunity under Section 230.
The Court assumes without deciding that Plaintiffs’ products liability claim is otherwise adequately alleged.